England and Wales High Court (Queen's Bench Division) Decisions

Neutral Citation Number: [2021] EWHC 79 (QB)

Case No: QB-2019-002452

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 20/01/2021

 

Before:

 

THE HONOURABLE MRS JUSTICE COLLINS RICE

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Between:

 

 

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Mr John Stables (instructed by Patron Law Ltd) for the Claimant

Mr David Mitchell (instructed by George Green LLP) for the Defendant

 

Hearing date: 11^th December 2020

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Judgment Approved

The Honourable Mrs Justice Collins Rice:

 

Introduction

1.                  The Claimant, Ms Rachel Riley, is a well-known television presenter.  The Defendant, Mr Michael Sivier, is a political journalist and disability campaigner.  Ms Riley brings a defamation action against Mr Sivier over an article published on his website Vox Political - politics for the people, on 26^th January 2019, headlined “Serial abuser Rachel Riley to receive ‘extra protection’ - on grounds that she is receiving abuse”.

2.                  The arena in which this dispute arises is the Twittersphere.  Its backdrop is the debate about antisemitism and the Labour Party which has featured in British politics in recent years.  It focused at the time particularly on the figure of Mr Jeremy Corbyn, then leader of the Labour Party.  At one end of a polarised spectrum was a view of the Labour leadership as insufficiently active in dealing with allegations of antisemitism within the party, to the point of practically condoning it.  At the other end was a view that this critique was so unjustifiable as to amount to political smearing intended to undermine the leadership.  The debate unsurprisingly aroused strong, sometimes personal, feelings.  Views were expressed that some criticism of those challenging the Labour leadership to do more was itself tainted with antisemitism.

3.                  Mr Sivier’s website broadly supported Mr Corbyn politically.  Ms Riley is Jewish and had spoken out publicly with concerns over Labour’s handling of antisemitism, and about antisemitism more generally.  The dispute also involves a Twitter user identifying herself online as 16-year-old Rose, sympathetic to Mr Corbyn and a newcomer to the antisemitism debate.  She also tweeted on mental health issues.

Procedural Background

4.                  This is a second stage in Ms Riley’s claim.  A trial of preliminary issues was held on 11^th December 2019.  Nicklin J held as follows, in relation to the article Mr Sivier published about Ms Riley:

“1. The statement complained of means that

(1)   the Claimant has engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year-old girl, conduct which has also incited her followers to make death threats towards her.

(2)   By so doing, the Claimant is a serial abuser and has acted

a.       hypocritically: by complaining about being the victim of online abuse and death threats herself whilst at the same time committing serial abuse of someone who has in consequence herself now been subjected to death threats (but someone who, unlike the Claimant, cannot afford additional security protection);

b.      recklessly and irresponsibly:  by provoking her followers to subject the 16-year-old to further abuse and harassment, including death threats; and

c.       obscenely.

2.  The meaning at paragraph 1(1) above is a statement of fact.

3.  The meaning at paragraph 1(2) above is an expression of opinion.

4.  The meaning as a whole is defamatory at common law.”

 

5.                  In light of this ruling, Mr Sivier filed a defence on 29^th January 2020.  It advanced defences of truth (in relation to the statement of fact), honest opinion and publication on a matter of public interest, further to sections 2 to 4 of the Defamation Act 2013. 

6.                  Ms Riley now applies to strike out this defence in its entirety, on any of the three grounds provided for in rule 3.4(2) of the Civil Procedure Rules, and/or pursuant to the inherent jurisdiction of the Court preserved by rule 3.4(5).  The three grounds are:

(a)          that the defence discloses no reasonable grounds for defending the claim;

(b)          that the defence is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings;

(c)          that there has been a failure to comply with a rule, practice direction or court order.

7.                  Before me also is Mr Sivier’s application for permission to make some limited amendments to his defence.  Ms Riley opposes this application but, for the purposes of considering the merits of the strike out application, invited me to proceed by reference to Mr Sivier’s draft amended defence.

8.                  In addition, there is before me an application by Mr Sivier to strike out a paragraph of Ms Riley’s Claim Form.  This application is unopposed; the paragraph is accepted to have been included in error.

Issues and Legal Principles

9.                  Nicklin J’s ruling means I must proceed on the basis that Mr Sivier has made a defamatory allegation of fact about Ms Riley: that she engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year-old girl, conduct which has also incited her followers to make death threats towards her.  To defend this further to section 2 of the 2013 Act, Mr Sivier must prove it ‘substantially true’.  Mr Stables, Counsel for Ms Riley, says, first, that Mr Sivier’s pleading of a defence of substantial truth is fatally defective, and second, that there is nothing in it which, even if proved, is capable of establishing the truth of this allegation.  

10.              It is not disputed that ‘engaged upon, supported and encouraged’ suggests deliberate, purposeful behaviour by Ms Riley, and that ‘a campaign’ indicates a connected course of conduct with an outcome in view.  The campaign alleged is one of ‘online abuse and harassment’.  ‘Online’ places the allegation within the Twittersphere itself - in the pattern and content of tweets.  ‘Abuse’ speaks for itself, although, as discussed below, falls to be understood in the context of the norms of vigorous Twitter debate on a sensitive subject arousing strong feelings. 

11.              ‘Harassment’ is a term with which statute law has had to deal.  Section 1 of the Protection from Harassment Act 1997, for example, defines it as a course of conduct which a reasonable person in possession of the relevant information would think amounted to or involved harassment of another - an objective test and a pointer to the ordinary meaning of the word.  It has also been judicially considered (see, for example, the recent summary at paragraph 44 of Hayden v Dickenson [2020] EWHC 3291 (QB)).  The ordinary meaning is a persistent, deliberate, unacceptable course of targeted oppression.  Where harassment by words is alleged, that must be tested against the legal protections for free speech, including Article 10 ECHR.  ‘Abuse and harassment’, objectively considered, are strong factual allegations of serious interpersonal misconduct outside the boundaries of accepted everyday interactions.

12.              To defend opinion further to section 3 of the 2013 Act, Mr Sivier has to show that an honest person could have held the opinion on the basis of any fact which existed at the time of publication.  Mr Stables draws attention to the way Nicklin J’s ruling links the primary allegation of fact with the matters of opinion constituting the rest of the article.  He says that introducing the second paragraph of the meaning with ‘by so doing’ predicates the opinion which follows on the particular factual allegation made. The defence under section 4 requires Mr Sivier to establish a reasonable belief it was in the public interest to publish as he did.  Mr Stables says that if the factual allegation is not defensible, then the honest opinion and reasonable belief defences fail also:  if facts are incapable of being shown to be true there is no arguable basis in law for sustaining an opinion based on them, or a reasonable belief in publishing them in the public interest.

13.              Striking out a defence is a drastic remedy to ask for.  The burden is on Ms Riley to make the case.  The test is whether Mr Sivier’s pleading adds up to a defence with a realistic prospect of success: more than merely arguable and carrying some degree of conviction.  In deciding that, a court does not conduct a mini-trial of the issues, but nor does it take at face value without analysis everything a defendant proposes.  It must test if there is real substance in any factual assertions, taking into account the evidence before it and evidence that could reasonably be expected to be available at trial. 

14.              A court must hesitate to make final decisions without a trial if there are reasonable grounds to believe a fuller investigation of facts would add to or alter the evidence available to a trial judge and so potentially affect the outcome of a case.  At the same time, “there must be something going beyond bare Micawberism … it is not a legitimate tactic to proceed to court on vague allegations of wrongdoing in the hope that cross-examination will elicit some bonus admission” (Hunt v Times Newspapers [2012] EWHC 110 (QB) at paragraphs 28-29).  If the question of whether a case should proceed comes down to an issue of law or construction which a court is satisfied it has all the evidence necessary for determining, and the parties have had an adequate opportunity to address it, the court should ‘grasp the nettle’ and decide it; if a case is unsustainable, the sooner that is determined the better. 

15.              I am guided by well-established authority in assessing whether a defence is capable of establishing the substantial truth of defamatory allegations of fact.  Particulars in support of a defence must be both sufficient and pleaded with proper particularity. Sufficiency means they are capable of proving the truth of the defamatory meaning. Particularity is judged not by the number of particulars cited, but by the pleading of a succinct and clear summary of the essential facts relied on, enabling a claimant to know the precise nature of the case against them, and giving them enough detail so they can meet it. (Ashcroft v Foley [2012] EWCA Civ 423, paragraph 49).

16.              I am also directed to the well-established ‘Musa King’ principles - the distillation of law set out at paragraph 32 of Musa King v Telegraph Group Ltd [2003] EWHC 1312.  The principles pre-date the 2013 Act, and that case concerned weaker allegations of fact than the present case, but the framework is clear and relevant:

1) There is a rule of general application in defamation (dubbed the “repetition rule” by Hirst L.J. in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation — not merely the fact that the allegation has been made.

2)  More specifically, where the nature of the plea is one of “reasonable grounds to suspect”, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged.

3)  It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty.

4)  A defendant may (e.g. in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact — but that in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts.

5)  Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the so-called “conduct rule”).

6)  It has recently been acknowledged, however, by the Court of Appeal in Chase at [50]-[51] that this is not an absolute rule, and that for example “strong circumstantial evidence” can itself contribute to reasonable grounds for suspicion.

7)  It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.

8)  A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue requires to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).

9)  Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.

10)  A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.

 

The Defence of Substantial Truth - Analysis

17.              Mr Sivier’s pleaded defence of substantial truth particularises a number of tweets:  one direct exchange between Ms Riley and Rose; other tweets by Ms Riley; and tweets by third parties to or about Rose.  He says the tweets from Ms Riley themselves constitute engaging in abuse and harassment, both on their face (individually and collectively) and because some of them evidence harassing tactics by her; that the third-party tweets to or about Rose are abusive and attributable to Ms Riley’s online actions and omissions; and that all of this together constitutes a course of conduct by Ms Riley amounting to a campaign of abuse and harassment of Rose, as alleged.  He says the truth of the allegations appears from the tweets themselves, and he proposes to adduce other evidence at trial, including from Rose, to develop the defence further.

18.              Mr Stables objects that the defence fails for want of sufficiency and particularity of pleading;  that Ms Riley’s own tweets are incapable of sustaining the truth of the allegations against her; there are no other primary facts pleaded capable of establishing Ms Riley’s further agency as alleged (the ‘conduct rule’ is not observed); the facts pleaded are misleadingly selective; and Ms Riley’s alleged omissions are defectively pleaded including by impermissibly reversing the burden of proof.  I consider each of these issues in turn, applying the relevant guidance, before standing back to consider the substantial truth defence as a whole.

(i)         The pleaded chronology:  selectivity and Musa King principle 8

19.              A degree of selectivity is inevitable in a case like this which has to do with an extensive, multi-participant online Twitter debate on a subject relating to national politics.  Mr Sivier is entitled - obliged - to identify in his pleadings the matters he thinks most pertinent to his defence.  At the same time, his case turns on the interpretation and evaluation of Ms Riley’s course of online conduct relating to Rose.  I have to be satisfied that the selectivity is sustainable in the account it gives of that conduct. 

20.              Mr Stables argued, by reference to a table prepared by Ms Riley’s solicitor of all the relevant tweets by Ms Riley and by Rose in and around the period identified by Mr Sivier, that his pleaded selection from these is unsustainable and misleading, omitting material essential to a proper and fair characterisation of the tweets he wants to rely on.  The accuracy and completeness of this table are not materially in dispute (I attach it, for ease of reference, as an annex to this judgment) and I heard full submissions from both sides as to its content, on a tweet-by-tweet basis.  This is material which would be available at trial, and Mr Sivier’s proposed defence proceeds largely (as indeed, given the terms of Nicklin J’s ruling, it is bound to do) on the basis that Ms Riley’s online conduct speaks for itself.  No mini-trial now, or other future evidence, is required to construe this material.

21.              The first point Mr Stables draws out is that the story properly begins with a sequence of fifteen tweets by Rose, over 15^th and 16^th December 2018, showing her involved in a lively Twitter exchange with others on the Labour/antisemitism debate in general and Ms Riley’s position on it in particular.  Rose expresses disappointment that Ms Riley would believe a biased media bringing the Labour leadership down or wrongly use her platform to spread such propaganda, encouraging opinions and smears falsely accusing others of antisemitism; says Ms Riley should feel ashamed of herself; and challenges her for not replying, attributed to failure of common sense, intelligence or seeing the bigger picture.  Nearly all of these were sent direct to Ms Riley.  Mr Stables argues they show why Ms Riley sent a series of seven tweets direct to Rose in the early hours of 17^th December - it was a response to this direct invitation and challenge from Rose to Ms Riley to explain herself. 

22.              He also notes that the single tweet from Rose in this series which was selected in Mr Sivier’s pleadings - where Rose said she had made her final comment on antisemitism and was now muting the subject to avoid being trolled - was in fact followed by two more tweets from Rose herself on the subject.  These directly challenge Ms Riley’s position, including saying she herself was not ‘lecturing a Jewish woman’ as Ms Riley was ‘an atheist’.  Mr Stables says this further explains Ms Riley’s decision to reply.

23.              The third point Mr Stables makes is that the pleadings omit Rose’s response the following morning (18^th December) to Ms Riley’s reply, by way of four more tweets of her own.  These show Rose thanking Ms Riley for her reply and making considered comments on the issues it set out.  Ms Riley’s response a couple of hours later, a further set of five tweets, is particularised omitting the first tweet sympathising with Rose’s position.  Only one of five tweets from Rose in reply is selected, and a short final comment from Ms Riley (one of two tweets) concluding the exchange amicably.  He says the material omitted underlines the friendly and civil character of the exchange.

24.              Mr Stables’ fourth point is that the pleadings omit all but one of a series of seven tweets from Rose between 31^st December 2018 and 9^th January 2019.  These are her first tweets since the exchange of 17^th/18^th December, and show a distinct change in her attitude, now actively hostile to Ms Riley.  No explanation is specifically pleaded for this turn of events, but it appears from the tweets that Rose has been discussing Ms Riley with others, who are critical of her; she accepts her exchange with Ms Riley had been amicable, but now says she has been the object of trolling which she attributes to Ms Riley’s ‘gang’; and that she has blocked her.  Mr Stables says the omitted material points to an explanation for Rose’s experience of trolling, and the genesis of an online narrative of Ms Riley’s responsibility for it, as lying somewhere outside the direct relations between the two of them.

25.              The next event in the timeline is a set of thirteen tweets from Ms Riley on 9^th January (not this time addressed to Rose personally) of which the pleadings refer to seven.  The gist of these, read as a whole, is that Ms Riley had become aware of the online narrative that she had instigated a bullying campaign against Rose, had herself become the object of abusive trolling as a result, and wished as she saw it to set the record straight.  Among the omissions are tweets detailing some of the online abuse she had received, and her response.  Mr Stables says the selectivity here gives a misleading picture of the extent to which this set of tweets is concerned with Rose’s personal part in events, as opposed to the generation of narrative by others who may have been themselves opportunistically using or influencing Rose’s position.

26.              Mr Stables’ final point on selectivity relates to a set of thirteen tweets by Ms Riley on 15^th January of which Mr Sivier’s pleadings quote seven.  Ms Riley is here describing escalation of the online narrative of her bullying Rose.  Among the material omitted are examples of abuse, including antisemitic abuse, Ms Riley says she had been subjected to by others, and again Mr Stables says this leaves a misleading picture of how far Ms Riley was focused on Rose, as opposed to the online speech that had built up against her personally, including about her alleged treatment of Rose.

27.              No other online speech by Ms Riley is relied on by Mr Sivier, except a tweet of 11^th January considered separately below.  Comparing his pleadings to the complete exchange between Ms Riley and Rose, and the complete more general Twitter comments by Ms Riley, I see the force of Mr Stables’ submissions that only a partial (in both senses) account is given.  Mr Mitchell responds that Mr Sivier’s defence does not depend on the exclusion of the material omitted.   But as he himself pleads, Twitter is a conversational medium: a defence based on proving a course of conduct amounting to an online campaign requires a sustainable account of it, not a collage of extracts.  That is also what Musa King principle 8 indicates (with due allowance for translation from what was there a ‘reasonable grounds’ (less definitive) allegation of fact).  

28.              Mr Mitchell does not quarrel with that proposition in principle, as I do not see he properly could, but says that selectivity alone cannot justify strike-out:  the key question at this stage is whether the course of conduct, complete and contextualised, is itself capable of founding a defence of truth.  I turn to that question next, but on the basis that Mr Sivier is not entitled to have the arguability of his defence considered in the absence of the facts and context provided by the complete sequence of relevant tweets. 

(ii)        Ms Riley’s own tweets:  sufficiency

29.              Mr Sivier wants to defend the substantial truth of his allegation that Ms Riley engaged upon, supported and encouraged a campaign of online abuse and harassment of Rose.  The tweets from Ms Riley set out in the table include the entirety of the online speech of Ms Riley herself relied on as amounting to an online campaign. I therefore consider first the issue of whether she herself ‘engaged upon’ a campaign of online abuse and harassment by way of her own tweets: the total of fourteen involved in the direct exchange with Rose on 17^th December 2018, the two more general sets of thirteen each on 9^th and 15^th January 2019, and the single tweet of 11^th January referencing (friend and actress) Tracy Ann Oberman.  Mr Sivier pleads that each itself (with the possible exception of the last, considered below), and all of them together, amount to abuse and/or harassment of Rose by Ms Riley.

30.              Beginning with the direct conversation with Rose, Mr Sivier pleads that Ms Riley: ignored the subject matter of Rose’s criticism of her, namely her own ‘smearing’ of (political journalist and Labour activist) Owen Jones; patronised Rose; falsely accused her of saying things she had not said; whilst recognising the abuse Rose had been subjected to, failed to admit her own responsibility for it or to condemn her own supporters/followers who had perpetrated it; sought to exploit Rose’s campaigning on issues of mental health in an attempt to assert her own credibility; questioned Rose’s motives and suggested she was a dupe for the opinions of undesirable third parties; and tried to trick or control Rose into doubting both her own views and herself.  He also draws attention to the number of tweets sent and the time of night.

31.              I keep in mind that I am considering at this stage the arguable truth that Ms Riley’s online speech as a matter of fact shows her engaging in a campaign of online abuse and harassment of Rose.  I have to look at this exchange fairly and objectively, comparing the descriptions pleaded with the conduct evidenced.  This is not about weighing Mr Sivier’s opinions of the matter, it is about verifiable fact.  On that basis, whether or not one agrees with Ms Riley’s decision to tweet Rose, or with the content of her tweets, it is plain beyond any argument that she was responding to a direct challenge from Rose to explain herself and her point of view, and did so in a measured and civil fashion well within the accepted norms of online discussion on Twitter. 

32.              Twitter is a medium characterised by constraints of brevity; it is routine practice, including in mainstream journalism, to develop a point of any complexity over a thread cumulating the word limits of a number of individual tweets.  The time of day (or night) is irrelevant to an exchange not itself time-sensitive or expecting immediate response.    

33.              Rose’s own response to Ms Riley’s tweets, and in the ensuing exchange, is instructive.  She thanks her for replying.  She gracefully acknowledges her own mistake in assuming ‘Jewish’ and ‘atheist’ mutually exclusive.  She articulates her political viewpoint, and acknowledges Ms Riley’s perspective without sharing all of it.  She notes the role of others including in the mainstream media in degrading the conduct and tone of the wider political debate.  Rose’s reaction is cordial, engaged and self-possessed.  She says herself in a later tweet of 9^th January that this conversation had been ‘amicable’. 

34.              I do not see that this conversation with Rose can be objectively described as anything other than a straightforward, rational and respectful exchange of views in which Ms Riley’s engagement was prompted, received with interest and thanks, and responded to constructively.  Mr Sivier is of course entitled to disagree with Ms Riley’s judgment as to its conduct and content.  But his pleaded objections are not sustainable as a factual description of Ms Riley’s speech on its face, as opposed to opinionated commentary; and I cannot see on any basis that this conversation is capable of demonstrating the truth of the strong allegations in Mr Sivier’s article. 

35.              I turn to Ms Riley’s general tweets.  Mr Sivier says they:  attack Rose; ignore her wishes; implicate her in the spread of antisemitism; portray her as the dupe of third parties; support others’ attacks on Rose; suggested she needed professional help; and fail to acknowledge Ms Riley’s own responsibility for Rose’s online experience. 

36.              Again, I have to consider the objective facts, not Mr Sivier’s opinion of these tweets.  I take into account that they are not directed to Rose personally - they are general Twitter comment.  I also take into account that between the conversation with Rose on 17^th December and Ms Riley’s January 2019 tweets, there appears to have been an amount of online activity and comment by partisan third parties on both sides of the debate, directed to Ms Riley or to Rose respectively, to which each took strong objection.  Mr Sivier’s defence sets out some of the hostile material directed to Rose.  Ms Riley’s tweets set out some of the hostile material directed to herself.  The material directed to Ms Riley included accusations that she had treated, or was treating, Rose inappropriately, or was responsible for others doing so.

37.              I take into account Rose’s own version of events, in her tweets between 31^st December and 9^th January.  As noted, these show a conspicuous change in attitude to Ms Riley since the ‘amicable’ conversation of 17^th December.  They reference adverse third-party opinion of her and impute responsibility to her for others’ online comments, but do not suggest either that the December exchange was itself objectionable, or that Ms Riley had herself said anything objectionable to or about Rose since.

38.              In that context, Ms Riley’s January comments are clearly expressed as a response to the narrative which had emerged from elsewhere that she was bullying Rose.  That does include a response to the adoption of that view by Rose herself, but is principally concerned with the spread of the narrative by others whose ill-intent she considers well evidenced elsewhere.  Ms Riley sets out her personal perspective on how the wider political debate had fastened antagonistically on her own public profile; the ‘bullying Rose’ narrative is given as just one example of that, and Rose’s own contribution to that narrative is itself expressed to be largely incidental (although it appears that Rose’s father had made his own interventions supporting it).  Ms Riley gives her own opinion that Rose is being exploited by others, but her principal concern is not with Rose: she takes active steps to depersonalise Rose’s contribution, including by removing Rose’s Twitter handle from material quoted, by stating that she is not attributing blame, and by expressly discouraging hostility to her. 

39.              I remind myself again that I am not concerned at this stage with the defensibility of opinion, but with the establishment as objective fact that Ms Riley’s tweets demonstrate her personally engaging in a campaign of online abuse and harassment of Rose.  I consider it self-evident from these tweets that Ms Riley’s principal concern was with antisemitism in general, and its expression towards herself in particular, citing the ‘bullying’ narrative as one example of this hostility and attributing its emergence to opportunistic and ill-intentioned third parties.  Of course all of that is personal perspective, and of course that perspective differs from that latterly expressed by Rose (and her father).  Mr Sivier does not agree with any of it.  But I do not consider it arguable that this personal defence in response to the bullying narrative is itself prime evidence of that narrative.  That proposition verges on the perverse. 

40.              The original December conversation with Rose was unexceptionable on its face, and confirmed to have been experienced as such by Rose herself.  It cannot furnish any proper basis for a harassment narrative.  That narrative plainly emerged from elsewhere, and before Ms Riley had said anything more online herself.  There is no basis to argue that Ms Riley’s response to the emergence of that narrative was, as a matter of fact, abusive or harassing of Rose.  The attempt to portray this rebuttal of a bullying narrative as itself proving it is an impermissible exercise in hauling a proposition up by its bootstraps.

41.              I turn briefly to Ms Riley’s remaining pleaded tweet.  On 11^th January 2019 she sent ‘loads of love’, an ‘internet hug’ and a cat gif to Tracy Ann Oberman.  I reflect on the potential of this to be portrayed as an endorsement of Ms Oberman’s own online activity below.  On its face, of course, it contains nothing referencing Rose, and nothing remotely capable of constituting abuse or harassment of anyone.

42.              I am bound therefore to conclude that Ms Riley’s tweets, by themselves but taken as a whole and in context, cannot arguably sustain a defence of the truth of Mr Sivier’s allegations of fact with a realistic prospect of success at trial.  Mr Mitchell, however, emphasises that they should not be taken by themselves; they should be considered as part of an overall course of conduct, including the conduct of third parties for which Ms Riley, at least arguably, should in fact be held responsible.  I consider that next.

(iii)       Third party tweets:  omissions, harassment and Musa King principle 10

43.              Mr Sivier’s proposed defence relies on being able to show firstly that Rose was in fact subjected to a campaign of online abuse and harassment, and second that, to the extent that that is not apparent from Ms Riley’s own online speech, it is apparent from the speech of others, and that Ms Riley supported and encouraged it.

44.              The material in Mr Sivier’s pleadings shows that Rose found herself the object of online attention and comment from third parties of a kind and degree she understandably found highly objectionable.  She had made her youth and personal experience of mental health issues matters of public knowledge, and I have no doubt that her experience of entering into this highly-charged and polarised political debate on Twitter was a personally bruising one.  I accept that Rose would be able and willing to give evidence that in her personal experience of this whole episode she had felt abused and harassed online by a number of people sharing a particular viewpoint within the debate.

45.              The objective issue I have to consider now is whether it is a sustainable proposition of fact that Ms Riley engaged upon, supported and encouraged a campaign to that effect.  The defence pleads that Ms Riley had more than 600,000 Twitter followers, and a record of promoting her perspective on antisemitism and the Labour Party and active and robust engagement online with those who did not share her views.  It pleads that a quantity of the online speech from third parties to which Rose could fairly have taken exception was tweeted by Ms Riley’s Twitter followers, referenced her tweets or otherwise took a cue from them, and that Ms Riley at the least did not discourage that; and that her tweets also elicited online speech from her friend and sympathiser Ms Oberman which was hostile to Rose and endorsed by Ms Riley.

46.              Mr Stables objects, as a basic point, that the fact that the author of a tweet is a Twitter follower of someone cannot possibly by itself attract any sort of responsibility to the person followed.  Following is a self-selecting, one-way process, and does not even signal sympathy with (as opposed to interest in) the person followed.  Someone with a public Twitter feed has no day-to-day control over who follows them or what use followers make of tweets they read.  The fact that followers may have tweeted objectionably to or about Rose cannot prove that Ms Riley engaged upon, supported and encouraged a campaign of abuse and harassment.

47.              Mr Sivier’s defence does not say Ms Riley asked others to tweet; it implicates her in third-party tweets by failure to acknowledge she had inspired them, or actively to distance herself from or to discourage or condemn them.  He makes this argument from what Ms Riley did not do by reference to both general principle and specific statutory definitions of harassment and stalking which include omissions or failures to act.

48.              Taking the second point first, Mr Sivier accepted before me that his allegation that Ms Riley engaged upon, supported and encouraged a campaign must go further than suggesting mere inadvertence.  It is not an allegation of simple passivity or even negligence.  He wishes to argue that Ms Riley made ‘deliberate and calculated omissions’ which were intended to, and did in fact, support and encourage the actions of others.  A ‘campaign of harassment’ does suggest conscious strategy.

49.              What, in this context, would make an omission a ‘deliberate and calculated’ part of a campaign?  Omissions generally have legal significance only in the context of a positive duty to act.  It may be that in relation to harassment and stalking, legal significance has been attracted by statute to a wider range of omissions than those arising from positive legal duties to act, and that the issue may therefore be to a degree fact-sensitive.  Nevertheless, Mr Sivier does have to establish some measure of significance to what Ms Riley did not do in this case capable of proving she deliberately supported a campaign of harassment.

50.              Mr Sivier argues from Ms Riley’s public prominence, and the imbalance of power and influence between a national figure with many online followers and a vulnerable teenager with publicised mental health issues.  Without arguing that Ms Riley should not have responded to Rose at all, the suggestion seems to be that, by engaging directly with Rose on a sensitive matter and then commenting on that engagement, Rose was made a centre of unwelcome attention which Ms Riley calculatedly condoned.   

51.              An argument of that sort faces formidable obstacles.  It relies on establishing a causal connection between what Ms Riley did not do and what others did, as to which there is little discernible basis in Mr Sivier’s pleadings.  I agree with Mr Stables that condoning cannot be established by the mere fact of followership; and the ‘bullying Rose’ story had independent origins and a life of its own.  It would also have to deal with the fact that Ms Riley’s tweets did take at least some active steps to do the exact opposite of supporting or encouraging others to harass or abuse Rose, including by removing her Twitter handle from quoted material and saying in terms that her principal concern was not with Rose and that others should not target her. 

52.              I also see force in Mr Stables’ objections that this proposition from alleged omissions - which Mr Sivier hopes to develop with the assistance of evidence from Ms Riley and disclosure of relevant private exchanges he surmises she will have had with others, including Ms Oberman - appears to enter territory discouraged by Musa King principle 10.  It has the flavour of setting up an ill-defined, and potentially extensive, class of ‘things not done’ by Ms Riley and putting her to an exculpatory explanation.  That would reverse the burden of proof, and be oppressive and unfair.  Avoiding that pitfall would require considerably more specific pleading as to the facts of Ms Riley’s alleged influence on others, and what she had to do to avoid inaction being characterised in the terms Mr Sivier alleged.  At the least, they seem to rest to a degree on a Micawberist hope that evidence may turn up capable of making good an assertion of deliberate and calculated inaction amounting to support and encouragement of a campaign.

53.              More generally, this argument goes beyond placing a duty of the most generalised sort on public figures, in exercising their own freedoms of speech on Twitter, to take active care for the effects of the responses of others on the vulnerable.  It characterises failure to do so as itself constituting deliberate support and encouragement of harassment and abuse by such others.  That is unrealistic, both in principle and on the facts of this case. 

54.              The Twittersphere is an arena for the unedited expression of personal views in short form which, entirely consistently with the legal rights and duties of free speech, can and do offend in manner and content.  Limited word count encourages economy and emphasis, and anonymity encourages disinhibition.  Where personal views are exchanged in this arena, on a topic of intense and polarised political debate, and on a subject which could hardly be more sensitive in its engagement with profound issues of personal and community identity, then strong feelings will be unsubtly expressed, and offence caused and taken.  That is Twitter, and it is a haunt of trolls.  The vulnerable enter at great personal peril.

55.              That does not excuse any online harassment of the vulnerable.  But nor can it mean a well-known TV personality accepts that the price for participation in intense Twitter debates is implication in the impact of any following troll on a vulnerable person.  Celebrity status, and a large Twitter followership, doubtless afford opportunities for role-modelling and influence.  But ‘omission’ to take those opportunities to champion the vulnerable and condemn the intemperate, is not, even arguably, tantamount to supporting or encouraging online harassment.  Celebrities are responsible for what they say on Twitter, but they are not responsible for the Twittersphere simply by entering it, nor for Twitterstorms which others choose for any reason - pro or anti the celebrity - to generate around them or around their online speech and contacts.

56.              Rose challenged Ms Riley to engage with her and thanked her for her response.  Third parties appear to have made mischief in the wake of that engagement, and Rose herself publicised a narrative that she was the victim of bullying for which Ms Riley’s ‘gang’ was to blame.  Mr Sivier’s website article said this was fact, and he seeks now to defend that by showing Ms Riley’s speech and ‘deliberate and calculated omissions’ were responsible.  There is no arguable source for that responsibility in law or fact; and it is a still further leap to the truth of an allegation of deliberately supporting and encouraging a campaign of abuse and harassment.  I do not see an argument from Ms Riley’s alleged omissions realistically capable of supporting that allegation.

57.              I test this against what may be the high-water mark of Mr Sivier’s case:  Ms Riley’s intervention on 11^th January following the entry of Ms Oberman into the debate on Twitter.  I say it may be the high-water mark because of the following features.  First, Ms Oberman is (apparently) a personal friend of Ms Riley rather than a mere Twitter follower, someone with whom she might actively exchange support and encouragement.  Second, Ms Oberman is said to have intervened by making rather a large number of tweets to Rose herself, and about Rose, challenging her position.  These may have been well-intentioned (she offered to arrange for Rose to have tea with a Jewish girl to support an exchange of viewpoints), but by this stage may have been an unwelcome and somewhat overwhelming experience for Rose: her father intervened online to protest against this attention.  Third, Ms Riley’s tweet of 11^th January closely followed Ms Oberman’s intervention: potential circumstantial evidence of connection.  These features set this incident somewhat apart from the generality of followers’ tweets to or about Rose which Mr Sivier’s defence cites.

58.              Even so, there is no evidence that Ms Riley caused this intervention, or that it was anything other than a gesture initiated and executed of Ms Oberman’s own motion.  Ms Riley does not expressly endorse it; her tweet is a message of warmth to Ms Oberman with a focus on her general public position on antisemitism.  Even if Ms Oberman’s attentions to Rose amounted to harassment (which I doubt), and even if she was in fact motivated by fellow-feeling for Ms Riley, I cannot find a basis for an arguable case that by not constraining or condemning this Ms Riley (deliberately) supported or encouraged it and that there is a campaign of harassment to be discerned here in consequence.  Mr Sivier’s hope of the disclosure of private messages will not do; his case, to the extent that it is not impermissibly speculative, relies first on a failure to restrain or condemn as equivalent to support and encouragement, when they are not as a matter of ordinary language the same thing;  and second on approval of Ms Oberman’s general stance on antisemitism as support for a campaign of abuse and harassment of Rose when it is not even expressed as support for Ms Oberman’s tweets to or about Rose.  To argue that sharing a cat gif alternative to online unpleasantness is evidence of the sort of bullying which it condemns is fanciful.

59.              It is not Ms Riley’s task in this litigation to explain a friendly tweet, or her online relationship with Ms Oberman, or to dissociate herself from the speech of others.  It is Mr Sivier’s to demonstrate the truth of his strong factual allegations about Ms Riley.  I cannot discern in his pleading of her ‘omissions’ an arguable component of a course of conduct by Ms Riley capable of establishing the truth of those allegations. 

(iv)       The conduct rule: particularity

60.              Where a defence of substantial truth is raised to an allegation that a claimant has definitely done something (a ‘Chase level 1’ allegation), then the authorities, including the Musa King principles, are clear that primary facts must be pleaded with enough specificity capable of establishing that truth.  The allegation to be established as true here is that Ms Riley did, in objective fact, engage in, support and encourage a campaign of online abuse and harassment of Rose.  For the reasons given, I cannot agree that Ms Riley’s tweets and/or alleged omissions could sustain a defence of the truth of those allegations.  Her own online speech does not arguably constitute a campaign of harassment (or, perhaps, any nature of ‘campaign’: no specific particulars of a campaign are pleaded) and omissions in relation to others’ speech, deliberate or otherwise, are not pleaded in a way capable of constituting relevant primary facts about Ms Riley’s conduct and its consequences.

61.              Ms Riley’s speech and omissions form the principal elements of the proposed defence.   As the conduct rule stipulates the pleading of objective primary facts, third-party reports of her authorship of a campaign against Rose, or Mr Sivier’s or Rose’s own opinions to that effect, will not suffice.  The only other primary facts pleaded - facts about what Ms Riley herself did - relate to action she is said to have taken to ‘circumvent’ the online block Rose put in place on 18^th December 2018.  It is said that this block would have prevented Ms Riley following Rose or seeing her tweets but that she was evidently still aware of them, and therefore must have become so by surreptitious means, amounting to stalking or harassing.  These could have included opening a new Twitter account in another name, using a third party to monitor Rose’s account or logging out in order to observe Rose’s account anonymously.

62.              No source of evidence is cited for activity of this nature by Ms Riley.  It is put forward simply as a logical deduction.  I am unpersuaded of the logic: if Ms Riley continued to be aware of Rose’s online activity no explanation appears of why that could not have taken place without ‘surreptitious’ activity - for example because other people had alerted her to it.  Nor is it clear that such activity could in any event amount to engaging in or supporting a campaign of online harassment (I am unpersuaded of any relevant analogy to the example of online stalking given in section 2A(3)(d) of the Protection from Harassment Act 1997 in terms of ‘monitoring’ behaviour).  In these circumstances, I cannot find that Mr Sivier’s defence sufficiently pleads a case, based on specified conduct of Ms Riley, which adds to her tweets and her ‘omissions’.

Conclusions on the Defence of Substantial Truth

63.              For all these reasons, I have not been able to discern in Mr Sivier’s pleadings a case, arguable with a realistic prospect of success, that it is substantially true that Ms Riley engaged upon, supported and encouraged a campaign of online abuse and harassment of Rose.  That itself precludes the possibility of arguing that any such conduct incited others to make death threats to Rose.  If such threats were made there is no basis for saying they were incited by Ms Riley’s conduct as alleged, since there is no arguable basis for establishing the objective fact of that course of conduct.

64.              I repeat one more time that I must look at this matter through the lens of Nicklin J’s ruling that this was an assertion of fact, not a personal opinion of Mr Sivier.  That is a significant line for Mr Sivier to have crossed: he could have elected to publish an opinion piece, but he did not take that option.  If a factual allegation is defended in reliance on the public online speech of a claimant as amounting to a campaign of abuse and harassment, it is not enough to prove the speech controversial, unwelcome or strongly disagreed with.  Such are the everyday norms of free speech in the Twittersphere, not least where polarised and sensitive topics of political debate engaging issues of identity are concerned.  The only online speech of Ms Riley cited in this case falls far short of anything that could fairly and arguably be said to constitute a campaign of harassment and abuse of Rose.  There is no sustainable basis pleaded for imputing to her responsibility for supporting and encouraging, by her speech or by her silence, any such conduct by third parties.  No other conduct of Ms Riley is pleaded to the requisite standards of sufficiency and particularity.

65.              In these circumstances it is neither fair nor in the interests of justice for a proposed defence of substantial truth to proceed to trial.  Mr Sivier’s pleading discloses no reasonable grounds for defending the substantial truth of his factual allegations, and to that extent falls to be struck out.

The Honest Opinion and Public Interest Defences

66.              Defamatory expressions of opinion may be defended if an honest person could have held them on the basis of any fact which existed at the time of publication.  The supporting facts pleaded in this case are the defamatory allegations, and Ms Riley’s own complaints of others’ speech and threats against herself.  The opinion expressed - that Ms Riley is a serial abuser and has acted hypocritically, recklessly, irresponsibly and obscenely - has in any event been ruled to be an opinion attached to the assertion that this was by virtue of her having done in fact what he had alleged.

67.              If it is not even arguably true that Ms Riley engaged in or encouraged and supported a campaign of online abuse and harassment of Rose, I do not see that opinions based on the fact of her having done so can themselves survive to be defended.  Mr Sivier’s article has been ruled to have nailed its colours to the mast of a factual allegation and a series of consequential opinions.  The expressions of opinion identified and ruled to be such are not coherently severable from the allegations of fact.  If Ms Riley did not engage in, encourage or support a campaign of online abuse and harassment of Rose, there is no survivable basis in these pleadings to defend an opinion that by so doing she is a serial abuser meriting the pejorative epithets applied to her conduct. 

68.              The same must go for the public interest defence.  There can be no reasonable belief in the public interest in publishing untrue allegations and unsustainable opinions without some clear explanation and justification.  None appears here.

The Strike-Out Application:  Result

69.              Ms Riley’s application to strike out Mr Sivier’s defence succeeds, in so far as the defence deals with the defences provided by sections 2 to 4 of the 2013 Act. 

70.              The defence also pleads matters relating to Ms Riley’s pleaded particulars as to publication, serious harm to her reputation (section 1 of the Defamation Act 2013), and remedy.  Unlike the substantive defences, these are matters which it Ms Riley’s responsibility to establish in due course, if so advised, and Mr Sivier is entitled to put her to proof.  They were not canvassed in detail before me, and I am not satisfied of a clear basis for a ruling at this stage relating to these aspects of Mr Sivier’s defence.

The Application to Amend the Defence

71.              A court may permit amendment if, in all the circumstances of a case, it is in the interests of justice to do so.  However a court should not allow a party to amend if the amended pleading would itself be liable to be struck out.  I have, as invited, considered Mr Sivier’s pleading on the amended basis that he seeks.  In that form I have concluded that the substantive defences fall to be struck out.  His application to amend those parts of his defence must fail.  So far as I can see, Mr Sivier’s proposed amendments do not affect the parts of his defence going to the remaining aspects of Ms Riley’s pleaded case (publication, serious harm and remedies).

 

 

 

Claim No. QB-2019-002452

 

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

 

MEDIA AND COMMUNICATIONS LIST

 

BETWEEN:

 

 

RACHEL RILEY

 

Claimant

-and-

 

 

MICHAEL SIVIER

 

                             Defendant

 

 

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APPENDIX 1 TO

FIRST WITNESS STATEMENT OF MARK LEWIS

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